Introductory Note to the European Court of Justice: The Akzo Nobel EU Attorney-Client Privilege Case
International Legal Materials, Vol. 50, No. 1, 2011
4 Pages Posted: 28 Aug 2012 Last revised: 3 Oct 2012
Date Written: September 14, 2010
Abstract
This note, which was prepared for ASIL’s International Legal Materials, introduces and places in context the September 2010 European Court of Justice case known as Akzo Nobel. Akzo Nobel involves the intersection of competition (antitrust) law and lawyer regulation. In 1982, the European Court of Justice decided a case called AM&S v. Commission which involved an antitrust investigation by the European Commission. In AM&S, the European Court of Justice held that there was an EU-level legal professional privilege, but that two requirements would have to be satisfied for this EU-level legal professional privilege to apply. First, the communication must have been given for purposes of the client’s defense. Second, the communication must have been with an independent lawyer, which would not include in-house counsel. The European Court of Justice observed that many EU Member States view the employment status of corporate counsel as fundamentally inconsistent with lawyer independence and thus the legal professional privilege.
Akzo Nobel, like AM&S, involved a European antitrust investigation in which documents were seized from in-house counsel. Because the Akzo case came before the European Court of Justice more than twenty-five years after AM&S, the corporate counsel bar, among others, had hoped that the European Court of Justice would take the opportunity to change its position on legal professional privilege. As this Introductory Note explains, the Court did not do so, but instead affirmed reaffirmed its prior AM&S approach.
This Introductory Note provides contextual material for the Akzo Nobel decision, including information about European regulation of lawyers. It also explains why the case is relevant to U.S.-licensed lawyers and offers observations about the significance of the case.
Keywords: legal privilege, legal professional privilege, LPP, AM&S, Akzo Nobel, corporate counsel, lawyer regulation, legal services
Suggested Citation: Suggested Citation